In the area of confessions, English common law has had an exclusionary rule that pre-dates the American exclusionary rule by a couple of centuries.
If an accused makes a confession to a person in authority, such as a police officer, the Crown must prove that the statement was made voluntarily, without fear or favour. If the Crown doesn’t meet that evidentiary onus, the Court will exclude the confession.
The modern summation of the confessions rule is found in the decision of the Judicial Committee of the Privy Council in Irbrahim v. The King, [1914] A.C. 599
Note that while this decision was handed down the same year as Weeks v. United States, 232 U.S. 383 (1914), the Law Lords were re-stating a principle that the English courts had recognised for a couple of centuries by that time.
The exclusionary rule for confessions was adopted throughout the Empire, as English law was adopted. It’s part of the law of Canada, for example, in addition to the constitutional rules cited by Muffin.
INAL, but decades of watching cop shows has left me with the distinct impression that there is an entire body of law out there with the sole purpose of protecting the suspected, the accused and the detained. Sure, that sucks, until you are suspected, accused and/or detained.
I agree. But other legal protections like the right to counsel, the right to remain silent, Habeus Corpus, etc protect both guilty and innocent suspects. The exclusionary rule, for the reasons I mentioned above, only protects guilty people.
There are other remedies but I was specifically referring to the exclusionary remedy. That rule requires evidence of guilt to apply.
Can anyone invent a scenario (without getting ridiculously convoluted) where the exclusionary procedure could directly benefit somebody who was innocent of any crime?
I can think of a couple off the top of my head. You loan your car to someone, an
extended family member, a co-worker, and they leave a roach in the ashtray, or
leave some trace evidence of other drugs in the car. You then get stopped for some
traffic violation or get into an accident and your car has to be towed, could be
weeks, months later, and an overzealous cop searches the car, or it’s done routinely
at the impound yard. You might not even remember loaning the car.
A few years ago I had two cops come to my house inquiring about a car that my (now) ex
had given to a girlfriend. At the time I told her to make sure the title was transferred
and made the mistake of assuming that she did so, she didn’t and the car had
supposedly been used in some crime. I invited the cops in, even offered them a cup
of fresh brewed, home ground, coffee which they declined. One of the cops started
giving me this spiel about him being a specially trained narcotics task force officer,
then tells me he smells marijuana and asks me if I’m growing it. I told them to leave
my house, which they reluctantly did. I don’t think I have anything illegal in my house,
but cops tend to want to find something to justify themselves. Maybe you kept that
bong from college twenty years ago, for a souvenir, or have you ever borrowed a
few painkillers from a friend when you threw your back out on a weekend and had
one or two left in the medicine cabinet. I’m sure that there are many possible
scenarios.
This may be a bit off topic, but I’d advise that you never consent to a search and
don’t buy that old “nothing to hide” argument.
Police arrest a suspect. They hold the suspect in the police station and deny the suspect a lawyer. They interrogate the suspect continuously for 20 hours, until finally the suspect confesses to the crime.
At trial, the suspect denies having committed the crime, saying that the only reason he gave the confession was the abusive, round-the-clock interrogation.
The confession is excluded because of the Miranda breach.
If a confession has been forced from a suspect in these conditions, it’s not particularly reliable as evidence. The exclusionary rule applies to protect a potentially innocent person.
Just to make myself clear, I’m talking about the exclusionary principle in the snese it’s been used throughout this thread - ie the exclusion of physical evidence found via an illegal search.
A.R. Cane gives an example of an innocent person being protected by evidence exclusion. But in his example the exclusion was just fortuitous - the exclusion of the evidence had nothing to do with the relevance of the evidence. The real principle that should have been invoked here was the defendant’s right to call witnesses to testify that the drugs were not his.
Things you say can be used against you. Since things you say can often be interpreted more than one way, this is problematic, at best. There are more complicated reasons why the innocent are best advised to shut their traps.
Don’t confuse the right to remain silent with the decision to remain silent. Anybody can decide to be silent - it doesn’t matter if you’re being questioned by Sheriff Taylor or tortured by the Gestapo. But the right to remain silent says the government recognizes you can decide to not answer questions and will not punish you for making that decision.
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I’m not exactly sure how the defendant would find witnesses who say the drugs weren’t his. Obviously, the defendant can’t call up the people who he loaned the car to, since that would violate their 5th amendment right (in america), unless the court gives them immunity…
Or he could call up friends and family to testify that he doesn’t do drugs. But what if he used to, or was found/pled guilty of possession in an earlier arrest? Clearly he would have a very hard time convincing a jury that those drugs weren’t his when he has a history of drug use.
It would seem, then, that the simplest manner of protecting the innocence of the innocent man would be to exclude the evidence, and not address the issue of whether or not he was innocent.
Of course, if the search were legal he’d be in a world of shit.
I’m afraid that I’m going to have to ask you to explain that a bit more thoroughly…I’m not sure I follow you.
My understanding of your point:
The il/legality of the search of your car has nothing to do with the evidence that might be found in your car.
Okay, I can buy that. Whether or not a search is illegal doesn’t have anything to do with whether or not something is found. But that isn’t what it sounded like you were saying earlier.
First you said:
And then you followed it up with:
Seeming to imply both that the exclusionary principle was irrelevent and that the ability to call witnesses was enough. So I attempted to provide an example where the exclusionary rule protected an innocent person, and where the ability to call witnesses would not have worked. Perhaps I should have just said that the D did not know anyone who could be called.
My point was that the defense against a wrongful act should follow directly from the act; not be dependent on some unrelated action occurring.
So the defense against some witness making a false statement is the right for both parties to question the witness. The defense against somebody being convicted based on past history rather than the crime before the court is the right to have the defendant’s criminal history ruled inadmissable. The defense aginst the prosecution throwing in some surprise evidence that the defense didn’t have time to adequately research is the right of the defense to have all evidence submitted to discovery before the trial. The defense against being convicted by some juror’s personal prejudice is the right to dismiss jurors. And the defense against evidence that would lead to a false conclusion (such as drugs being found in your car leading to the false conclusion that you owned the drugs) is the right to confront and rebut the evidence.
What you described however was more a system of “you win some, you lose some”. You shouldn’t have to hope that wrongful evidence against you will be counterbalanced by a juror that likes your smile or a prosecution witness getting amnesia or having the evidence ruled inadmissable because of a illegal search. These things might happen - but you cannot build a fair and impartial legal system on the assumption they will occur. That’s like saying trial by combat is a sound legal procedure because the innocent person might win the fight.
All legal principles are a situation of “you win some, you lose some”. There isn’t a single legal principle that will always protect innocent people, or never protect guilty people. I was establishing that it is possible, without reaching, to imagine a situation in which the exclusionary rule will directly help an innocent person.
Additionally, there are many principles like this, for example, take the idea of jurisdiction. In non-criminal cases (only because I’m more familiar with them) a court must establish that it has jurisdiction over a certain region before it can issue a judgment. Look up Bensusan Restaurant Corp. V. King (126 F.3d 25) for an example where the idea of jurisdiction protects a clearly guilty party…yet the judges in the case still say that they do not have jurisdiction.
The reason I bring up jurisdiction is to show that there are many principles which are similar to the exclusionary rule. Thus saying simply that a legal principle is “You win some, you lose some” is no grounds for saying that it is not a valid legal principle. Unless, of course, you reject that jurisdiction is a valid legal principle.
I certainly won’t disagree with the idea that every legal principle occasionally misfires and produces the wrong result. But the principles should be built on sound premises.
So we can say “we should allow physical evidence to be admitted because we can assume the facts the evidence would lead to are the facts that are true” or “we should allow the defense and the prosecution to each present their case because we assume that these two adversaries will reveal all true evidence between them and refute any false evidence presented by the opposing side” or “we will allow witnesses to be cross-examined because we assume that if they are giving false testimony the opposing lawyer will demonstrate this by his questioning”.
Obviously none of these premises are perfect; a witness might lie on the stand and get away with it, a lawyer might fail to present evidence that would help his case, or, as your example indicated, physical evidence might indicate something that isn’t actually true. But I think most people would agree that the premises are fundamentally sound.
However (bringing it back to my original point) in the case of excluding evidence found by illegal searchs, I think it’s the fundamental premise that is unsound for the reasons I gave.
This is only a “better solution” if one has any confidence that the government will, in fact, energetically punish its erring agents. Get back to me on that when Lon Horiuchi is indicted for murder.
